Sexual Assaults are Acts of Power, Aggression and Control

View fullsize

On November 8, 2011 Christopher Edgar forced his way into a woman’s apartment. He put her in a chokehold. He ordered her not to scream. Once he had forced his way in, he locked the door and released the complainant. He started ranting about a police chase and drugs. Edgar was red and sweaty; possibly high - he paced angrily and erratically between the complainant and her front door while making telephone calls. The complainant was terrified. She asked if she could smoke cigarettes and drink tea on the balcony. Edgar allowed it. The balcony was the only place, aside from her front door, where the complainant could possibly go.

When first on the balcony, Edgar told the complainant that before he left, they had to have an agreement – but first, he needed her to come inside and watch him masturbate. The complainant complied. She sat on the couch near Edgar while he masturbated by putting his hands down his pants. He did not expose his penis or touch the complainant. After a few minutes, Edgar asked the complainant when her husband was going to be home. She told him soon.

By this point, Edgar had been in the complainant’s apartment for about an hour. The complainant’s terror had mounted. In fear of being raped or killed, she ran out on the balcony, and dove over the railing. She fell 12 feet to the ground, and broke both of her ankles.  She screamed for help and tried to run away [@ paras 5-6].

Edgar was found guilty after trial of sexual assault. On appeal, he argued that because there was no overt interference with the complainant’s sexual or bodily integrity, the trial judge erred in convicting him.

The Court of Appeal did not agree: 2016 ONCA 120. To commit a sexual assault, it was not necessary for Edgar to have touched or even verbally threatened the complainant. A person’s act or gesture, without words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person’s sexual integrity.  Coupled with a present ability to carry out the threat, this conduct can amount to a sexual assault [see R v Cadden (1989) 48 CCC (3d) 122 (BCCA) and R v Johnson, 2006 CanLII 37519 SCJ)]. 

The Court of Appeal rejected giving Cadden and Johnson a narrow interpretation that required overt acts combined with verbal demands made of the victims. Rather, the Court found that Edgar’s act of masturbation was elevated from an indecent act to a sexual assault because of the surrounding circumstances of sexualized violence, control, and confinement that he created, and to which he deliberately subjected the complainant. The Court of Appeal held that it was those same types of circumstances that informed the decisions in both Cadden and Johnson [@ paras 12-15].

Further, the Court went on to emphasize, as was done in Cadden, that sexual assault is “an act of power, aggression and control, and that a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act” [@ para 16]. In this case, Edgar had intentionally terrorized the complainant for a prolonged period, in violent and sexualized circumstances, causing her to reasonably believe that he had the present ability to rape or kill her [@ para 16].

The Appeal was dismissed. Viewed in the context of the entire circumstances, Edgar’s acts indeed constituted a sexual assault [@ para 17].

Comment

Sexual assault prosecutions are difficult prosecutions for complex reasons. It is an area of criminal law that faces a myriad of legal nuances and engrained biases that are absent from other types of criminalized conduct. The Court of Appeal’s comments in Edgar highlights that the focus in sexual assault cases is largely centred on the integrity and subjective experiences of the complainant, and in this case, the surrounding circumstances which inform those experiences. The sexual integrity of the complainant is a paramount consideration, and the intent is only general. The Court’s reasons in Edgar are very clearly aligned, and properly so, with the Supreme Court’s decision R v Chase [1987] 2 SCR 293.

SS

Ice Caps & Stupefying Substances: inferring and denouncing high doses

View fullsize

Mullins was convicted of sexual assault and administering a noxious substance. The young victim was 18 at the time of the offence and a close friend of Mullins’ daughter. Mullins elected to have a trial in the Superior Court of Justice before a judge and no jury. Mullins was convicted; in the reasons for sentence, 2015 ONSC 1724, Molly J summarized the crimes as follows.

Using his daughter’s upcoming birthday as a ruse to enlist the help of AS, the victim, to shop for a gift, Mullins lured the victim into his truck. He offered her an iced cappuccino and a marijuana cigarette – one or both of which was laced with enough benzodiazepines to knock her out.

For over 12 hours he held her in the truck, brutally and violently raping her. When he was done, he dropped her off at her father’s home, beaten and still feeling the effects of the drugs. AS had little recollection of the vicious and prolonged attack; she testified of flashes of memory which involved a bed, a shower and Mullins’ voice.

Once home AS was still weak and disoriented. She was covered in injuries she could not recall having sustained.

The most significant injuries were the bruising and abrasions to both hips, the extensive bruising at the front of both feet, and the jagged tear at the entry to the vagina.  The vaginal injury had long term sequelae, including an infection and problems that were ongoing even as of the date of trial, five years after the attack. [@ para 8].

Mullins’ semen was in AS’ vagina and had prescriptions for 2 of the 3 types of benzos AS had been drugged with. 

Mullins testified in his own defence; his evidence of consensual sexual encounters with AS was unequivocally rejected.

The Crown sought a penitentiary sentence in the upper single digits. The defence proposed a range of 3-6 years.

Molloy J noted that there were no strong mitigating factors [@para 17]. There were however a large number of particularly aggravating factors.

One of the disputed factors was whether Mullins was in a position of trust in relation to AS. After reviewing the governing principles Molly J held that:

in assaulting A.S. as he did, Mr. Mullins abused his position of trust in relation to her.  There are no air-tight compartments as to what may constitute a position of trust.  The factual context is the most important part of the analysis.  Mr. Mullins was 47 years old at the time of this offence; nearly 30 years older than A.S.  He was the father of her close friend, and A.S. thought of him in that sort of parental role.  He had no actual authority over her, but she frequently spent nights and weekends at his home with her friend Katlyn, and in that sense was from time to time under his control.  He befriended her at a time when he knew she was particularly vulnerable due to the breakdown of her parents’ marriage.  He gave her gifts, joked around with her, shared marijuana with her, and their relationship evolved into one where she trusted him.  It was as a result of that trust that he was able to lure her into his truck with a story about shopping for a birthday present for his daughter.  Completely unsuspecting and having absolute trust in her friend’s father, A.S. was tricked into a position of vulnerability and then horribly abused.  In my view, these circumstances fall squarely within the notions of “trust” referred to in Audet, and within the purpose and intention of this sentencing provision in the Criminal Code. @para 26

An additional aggravating factor in this case was the endangerment of AS’s life through the use of drugs to perpetrate the assault. Notwithstanding the fact that there was no way to establish from the tests done on AS which specific drugs were administered nor in what dosage, Molloy J used the unchallenged evidence of the forensic toxicologist to draw a number of conclusions:

First, the greater the dosage of benzodiazepines, the greater the possibility of anterograde amnesia.

Second, in excessive quantities benzodiazepines cause on a spectrum, drowsiness, lack of consciousness, coma and can be fatal.

Third, since AS lost consciousness so quickly it is likely that initial dose was high.

Fourth, since she had no memory of what occurred over the span of 12 hours and given the extent of the injuries, the initial dose must have been “extraordinarily massive or else subsequent doses were administered”. [@para 35]

Fifth, although not possible to say whether AS was comatose or just how close to death she came, Mullins endangered her life with his administration of such a high dose or doses. This is a “seriously aggravating factor” [@para 36].

Molloy J also treated the fact that the intercourse was unprotected as an aggravating feature as it left her vulnerable to disease and pregnancy. [@para 39].

After reviewing a number of sentencing decisions Molloy J concluded that a fit sentence was one of 9 years on the sexual assault and 4 years to be served concurrently on the administering of a stupefying substance.

Molloy J held that:

sexual assault is often, by its nature, a difficult offence to prove because it is committed in private and rarely has corroborative evidence.  The use of drugs to stupefy the victim of a sexual assault frequently results in a victim who believes she has been abused but is unable to describe what has happened to her because her memory is completely missing.  Often by the time she gets to a hospital there is no longer any trace of the drug in her system, which makes it an even more difficult case to prove.  Not only are assaults committed in this manner difficult to prove and therefore attractive to their perpetrators, they are also extremely dangerous for the victims.  For this reason, general deterrence is of particular importance in sentencing crimes of this nature. @para 68

LT

New & Notable: Hoping for Rehabilitation does not Protect the Public

Mr. Ogbamichael touches women in a sexual manner while riding public transit. He has done so for many years. Most recently he was convicted of sexually assaulting a young woman on the Toronto public transit system: 2014 ONSC 1693. At the time of the offences Ogbamichael was bound by a probation order which barred him from being on Toronto Transit Commission [TTC] property.

View fullsize

Ogbamichael’s victim was asleep on the bus when she woke to the offender rubbing her leg and crotch. He tried to put his hand down her pants and she fled the bus.

The victim described feeling disgust and shame at the attack and an ongoing fear of using the public transit system.

Trotter J held that he had no doubt that the offender has made many other women feel the same way over the years as this was his seventh conviction for a similar sexual offence.

An earlier pre-sentence report [PSR] one prepared prior to this most recent crime, described the offender as being at a low risk to re-offend, despite suffering from the paraphilia “toucherism”.  The PSR’s prediction turned out to be wrong as this sexual assault was perpetrated shortly after the offender’s release from custody. Ogbamichael offered no expression of remorse nor any real insight into the impact his crimes have had on his victims.

Before sentencing Trotter J noted that the offender’s undeterred conduct “leaves a sentencing judge with little choice but to increase the severity of responses to his re-offending. At this stage, a disposition focused on rehabilitation would delicately rest on little more than hope, leaving young women travelling the TTC to bear the risk of this approach” [@para 16].

Ogbamichael was sentenced to an 18-month jail term for the sexual assault and 12-months consecutive for the breach of probation, followed by a three year probationary period. In so doing Trotter J recognized that:

this custodial sentence, for a single over-the-clothing subway groping might strike some as severe. However, given Mr. Ogbamichael's persistent pattern of offending, which seems to be impervious to jail sentences and court orders, a significant jail sentence is required in an effort to protect the public and to put an end to this behaviour [para 22].

 LT

New & Notable: Anesthesiologist Abusing Sedated Patients

View fullsize

Until the Ontario Superior Court’s decision in R v Doodnaught, 2014 ONSC 1196, there have been no reported cases in Canada on sentencing of an anesthesiologist who sexually assaulted his sedated patients during various medical proceedings [para 26].

Doodnaught was convicted of sexually assaulting 21 female patients. The victims were between the ages of 25 to 75. The sexual acts perpetrated on them included kissing, fondling, and forced fellatio. Although three formal complainants were made during the time period in the indictment, Doodnaught had faced no repercussions; the effects of the anesthesia were blamed and Doodnaught denied the allegations. McCombs J found that the dismissal of these complaints emboldened Doodnaught and escalated the frequency of his crimes. In fact, in the ten days prior to his arrest, no less than four women were sexually assaulted; three of them by forced fellatio. 

McCombs J found held that “the power imbalance between” Doonaught “and his victims was absolute” [para 8]. Sedated but aware of what was happening to them, the impact on the victims has been devastating.   The victim impact statements described profound psychological effect, sexual dysfunction and a distrust of the medical profession [para 13].  

At the time of sentencing Doodnaught was 65 years old with no prior criminal record.  McCombs J held that the “court has a duty to send a clear message that reflects society’s abhorrence for the conduct, and serves as a deterrent to others in a position of trust who might be inclined to prey upon vulnerable, sedated patients” [para 29].

Doodnaught was sentenced to 10years.

In March of 2014 Doodnaught sought release pending the hearing of his appeal. The notice of appeal alleges some 100 errors by the trial judge - all of which challenge the correctness of the findings of fact [2014 ONCA 172 @paras 7-8].

The Crown argued that Doodnaught’s ongoing detention was necessary and in the public interest. LaForme JA agreed and noted the following:

(…) on the record before me, his grounds of appeal are weak and not likely to succeed, although some may be arguable.  In cases like this, the need for immediate enforcement of the judgment outweighs the need to review the decision. Release, therefore, would not be in the public interest [ONCA para 24].

Doodnaught submitted the same 49 letters of support that were filed on sentencing. The point was to illustrate that some small segment of the public believed in his innocence.  LaForme JA held that:

These opinions should be accorded little weight given that a contrary opinion is no doubt held by the 21 victims and their families and associates.  The letters thus do not assist very much in gauging the public interest in this case [ONCA para 19].

 LT